Citation Nr: 21008409 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-02 673 DATE: February 17, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity involving the femoral nerve since June 24, 2016, is denied. A 20 percent, but not higher, disability rating for radiculopathy of the left lower extremity involving the femoral nerve is granted effective from January 4, 2016, to June 23, 2016, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the femoral nerve prior to January 4, 2016, is denied. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity involving the sciatic nerve since June 24, 2016, is denied. A 20 percent, but not higher, disability rating for radiculopathy of the left lower extremity involving the sciatic nerve is granted effective from January 4, 2016, to June 23, 2016, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the sciatic nerve prior to January 4, 2016, is denied. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity involving the femoral nerve since June 24, 2016, is denied. A 20 percent, but not higher, disability rating for radiculopathy of the right lower extremity involving the femoral nerve is granted effective from January 4, 2016, to June 23, 2016, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the femoral nerve prior to January 4, 2016, is denied. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity involving the sciatic nerve since June 24, 2016, is denied. A 20 percent, but not higher, disability rating for radiculopathy of the right lower extremity involving the sciatic nerve is granted effective from January 4, 2016, to June 23, 2016, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the sciatic nerve prior to January 4, 2016, is denied. Entitlement to a disability rating in excess of 40 percent for lumbar intervertebral disc syndrome with facet osteoarthropathy since June 24, 2016, is denied. Entitlement to a disability rating in excess of 10 percent for lumbar intervertebral disc syndrome with facet osteoarthropathy prior to June 24, 2016, is denied. FINDINGS OF FACT 1. The weight of evidence is against a finding that since June 24, 2016, the radiculopathy of the left lower extremity involving the femoral nerve has been manifested by severe incomplete paralysis or neuritis. 2. The evidence is in equipoise as to whether from January 4, 2016, to June 23, 2016, the radiculopathy of the left lower extremity involving the femoral nerve was manifested by moderate incomplete paralysis or neuritis. 3. The weight of evidence is against a finding that prior to January 3, 2016, the radiculopathy of the left lower extremity involving the femoral nerve was manifested by moderate incomplete paralysis or neuritis. 4. The weight of evidence is against a finding that since June 24, 2016, the radiculopathy of the left lower extremity involving the sciatic nerve has been manifested by moderately severe incomplete paralysis or neuritis. 5. The evidence is in equipoise as to whether from January 4, 2016, to June 23, 2016, the radiculopathy of the left lower extremity involving the sciatic nerve was manifested by moderate incomplete paralysis or neuritis. 6. The weight of evidence is against a finding that prior to January 3, 2016, the radiculopathy of the left lower extremity involving the sciatic nerve was manifested by moderate incomplete paralysis or neuritis. 7. The weight of evidence is against a finding that since June 24, 2016, the radiculopathy of the right lower extremity involving the femoral nerve has been manifested by severe incomplete paralysis or neuritis. 8. The evidence is in equipoise as to whether from January 4, 2016, to June 23, 2016, the radiculopathy of the right lower extremity involving the femoral nerve was manifested by moderate incomplete paralysis or neuritis. 9. The weight of evidence is against a finding that prior to January 3, 2016, the radiculopathy of the right lower extremity involving the femoral nerve was manifested by moderate incomplete paralysis or neuritis. 10. The weight of evidence is against a finding that since June 24, 2016, the radiculopathy of the right lower extremity involving the sciatic nerve has been manifested by moderately severe incomplete paralysis or neuritis. 11. The evidence is in equipoise as to whether from January 4, 2016, to June 23, 2016, the radiculopathy of the right lower extremity involving the sciatic nerve was manifested by moderate incomplete paralysis or neuritis. 12. The weight of evidence is against a finding that prior to January 3, 2016, the radiculopathy of the right lower extremity involving the sciatic nerve was manifested by moderate incomplete paralysis or neuritis. 13. The weight of evidence is against a finding that since June 24, 2016, the lumbar spine disability was manifested by unfavorable ankylosis of the entire spine. 14. The weight of evidence is against a finding that prior to June 24, 2016, the lumbar spine disability was manifested by thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; muscle spasm or guarding severe enough to cause an abnormal gait or abnormal spinal contour; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least two weeks. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity involving the femoral nerve since June 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8526, 8626 (2020). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 20 percent disability rating for radiculopathy of the left lower extremity involving the femoral nerve is granted effective from January 4, 2016, to June 23, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8526, 8626. 3. The criteria for a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the femoral nerve prior to January 4, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8526, 8626. 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity involving the sciatic nerve since June 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8520, 8620 (2020). 5. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 20 percent disability rating for radiculopathy of the left lower extremity involving the sciatic nerve is granted effective from January 4, 2016, to June 23, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8520, 8620. 6. The criteria for a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the sciatic nerve prior to January 4, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8520, 8620. 7. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity involving the femoral nerve since June 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8526. 8626. 8. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 20 percent disability rating for radiculopathy of the right lower extremity involving the femoral nerve is granted effective from January 4, 2016, to June 23, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8526, 8626. 9. The criteria for a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the femoral nerve prior to January 4, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8526, 8626. 10. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity involving the sciatic nerve since June 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8520, 8620. 11. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 20 percent disability rating for radiculopathy of the right lower extremity involving the sciatic nerve is granted effective from January 4, 2016, to June 23, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8520, 8620. 12. The criteria for a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the sciatic nerve prior to January 4, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.123, 4.124a, Diagnostic Codes 8520, 8620. 13. The criteria for a disability rating in excess of 40 percent for lumbar intervertebral disc syndrome with facet osteoarthropathy since June 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2020); 85 Fed. Reg. 76,453, 76,462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). 14. The criteria for a disability rating in excess of 10 percent for lumbar intervertebral disc syndrome with facet osteoarthropathy prior to June 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243; 85 Fed. Reg. 76,453, 76,462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to December 1998. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. In December 2019, the Board restored two 10 percent disability ratings for bilateral radiculopathy involving the femoral nerve effective July 9, 2016, and remanded the increased ratings claims for further development. In an August 2020 rating decision, a RO assigned a 40 percent disability rating for the lumbar spine disability effective June 24, 2016, and two 20 percent disability ratings for bilateral radiculopathy of the lower extremities involving the femoral nerve effective June 24, 2016. As these disability ratings are not the maximum ratings available for the lumbar spine disability and radiculopathy, the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist as to these claims. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating 1. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity involving the femoral nerve since June 24, 2016 2. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the femoral nerve from January 4, 2016, to June 23, 2016 3. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the femoral nerve prior to January 4, 2016 4. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity involving the sciatic nerve since June 24, 2016 5. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the sciatic nerve from January 4, 2016, to June 23, 2016 6. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity involving the sciatic nerve prior to January 4, 2016 7. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity involving the femoral nerve since June 24, 2016 8. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the femoral nerve from January 4, 2016, to June 23, 2016 9. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the femoral nerve prior to January 4, 2016 10. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity involving the sciatic nerve since June 24, 2016 11. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the sciatic nerve from January 4, 2016, to June 23, 2016 12. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity involving the sciatic nerve prior to January 4, 2016 13. Entitlement to a disability rating in excess of 40 percent for lumbar intervertebral disc syndrome with facet osteoarthropathy since June 24, 2016 14. Entitlement to a disability rating in excess of 10 percent for lumbar intervertebral disc syndrome with facet osteoarthropathy prior to June 24, 2016 Governing law and regulations Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim for any disability for which service connection had previously been granted. As for rating peripheral neuropathy, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or due to partial regeneration. Moreover, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to the previous sentence will be that for moderate incomplete paralysis except for sciatic nerve involvement, which will be that for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Diagnostic Code 8520 rates neuropathy associated with the sciatic nerve. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8620 rates neuritis associated with the sciatic nerve with the highest rating being 60 percent pursuant to 38 C.F.R. § 4.123. Diagnostic Code 8526 rates neuropathy associated with the anterior crural (femoral) nerve. A 10 percent evaluation is warranted for mild incomplete paralysis of the anterior crural (femoral) nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of anterior crural (femoral) nerve. A 30 percent rating requires evidence of severe incomplete paralysis of anterior crural (femoral) nerve. A 40 percent rating requires evidence of complete paralysis. When there is complete paralysis, there is paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. Diagnostic Code 8626 rates neuritis associated with the femoral nerve with the highest rating being 30 percent pursuant to 38 C.F.R. § 4.123. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Note (1): VA evaluates any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2019). The rating schedule further provides that an intervertebral disc syndrome (preoperatively or postoperatively) is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 60 percent is in order for an Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is assigned when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Finally, a 10 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2019). Diagnostic Code 5243 was amended effective February 7, 2021. Diagnostic Code 5243 provides that this diagnostic code only applies when there is disc herniation with compression and/or irritation of the adjacent nerve root and that Diagnostic Code 5245 (degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome) is assigned for all other disc diagnoses. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and under both the old and new criteria effective February 7, 2021. Given that the old criteria provide that the lumbar spine disability, regardless of whether there is disc herniation, can be considered under Diagnostic Code 5243, the Board will evaluate the disability under that diagnostic code for the entire appeal period. Analysis Bilateral radiculopathies In a December 2014 rating decision, a RO granted service connection for bilateral radiculopathy of the lower extremities involving the femoral nerve and bilateral radiculopathy of the lower extremities involving the sciatic nerve, all effective November 15, 2013. The RO assigned four 10 percent disability ratings effective November 15, 2013, under Diagnostic Codes 8620 (sciatic neuritis) and 8626 (femoral nerve neuritis). On June 24, 2016, the Veteran filed his claim for increased ratings. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. In the September 2016 rating decision, a RO assigned a 20 percent disability rating for radiculopathy of the right lower extremity involving the sciatic nerve effective June 24, 2016. In a November 2016 rating decision, a RO assigned a 20 percent disability rating for radiculopathy of the left lower extremity involving the sciatic nerve effective June 24, 2016 under Diagnostic Code 8520 (paralysis of the sciatic nerve). In the August 2020 rating decision, a RO assigned two 20 percent disability ratings for bilateral radiculopathy of the lower extremities involving the femoral nerve effective June 24, 2016. A July 2016 VA peripheral nerves examination report reveals that muscle strength was 5/5 in all tested movements in the left lower extremity and that muscle strength was 4/5 in all tested movements in the right lower extremity. There was no muscle atrophy. The knee and ankle reflexes were 1+ (hypoactive) bilaterally. The sensory exam was normal in both lower extremities for sensation to light touch. The examiner noted that there was not any numbness in either lower extremity. The examiner described the constant pain, intermittent pain (usually dull), and paresthesias and/or dysesthesias in both lower extremities as being mild in severity. The examiner stated that there was mild incomplete paralysis of the sciatic nerve bilaterally. The examiner also stated that there was no paralysis of the femoral nerve bilaterally and that the nerves were normal. A July 2016 VA back examination report reveals that muscle strength was 5/5 in all tested movements in the left lower extremity and that muscle strength was 4/5 in all tested movements in the right lower extremity. There was no muscle atrophy. The knee and ankle reflexes were 1+ (hypoactive) bilaterally. The sensory exam was normal in both lower extremities for sensation to light touch. Straight leg testing was positive bilaterally. The examiner noted that there was not any numbness in either lower extremity. The examiner described the constant pain, intermittent pain (usually dull), and paresthesias and/or dysesthesias in both lower extremities as being mild in severity. The examiner stated that the radiculopathy involved the sciatic nerve and that the radiculopathy was bilateral. The examiner described the both radiculopathies as being mild in severity. In a November 2016 medical opinion, the July 2016 VA examiner noted that the Veteran had reported that he had not had any pain in the femoral nerve distribution in the past year and that therefore the femoral nerve symptomatology had improved. An August 2020 VA back examination report reveals that muscle strength was 5/5 in all tested movements in the lower extremities bilaterally and that there was no muscle atrophy. The knee and ankle reflexes were 2+ (normal) bilaterally. The sensory exam was normal in both lower extremities for sensation to light touch. Straight leg testing was positive bilaterally. The examiner noted that there was not any constant pain in either lower extremity. The examiner indicated described the intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness in both lower extremities as being moderate in severity. The examiner stated that the radiculopathy involved the sciatic and femoral nerves and that the radiculopathy was bilateral. The examiner described the four radiculopathies as being moderate in severity. The Board places great weight on the muscle strength being 5/5 in the left lower extremity and at least 4/5 in the right lower extremity and that the sensory exams were normal to light touch. The Board also places great weight on the absence of muscle atrophy, the knee and ankle reflexes being no worse than 1+ (hypoactive) bilaterally, and the constant pain not being more than mild. The Board further places considerable weight on the examiner’s determinations that the left and right radiculopathies were no more than moderate in reported symptomatology and overall impairment. Based on these findings, the weight of evidence is against a finding that since June 24, 2016, the bilateral radiculopathy of the lower extremities involving the femoral nerve has been manifested by severe incomplete paralysis or neuritis of either nerve. By the same token, the weight of evidence is against a finding that since June 24, 2016, the bilateral radiculopathy of the lower extremities involving the sciatic nerve has been manifested by moderately severe incomplete paralysis or neuritis of either nerve. Therefore, increased ratings for the period since June 24, 2016, are not warranted, and the claims are denied. Turning to the one-year period prior to the date of claim, VA treatment records reflect that the Veteran sought treatment on January 4, 2016, for pain radiating into the lower extremities. He rated his pain as being a four on scale of one to ten. The doctor noted that there was no numbness or weakness and that there were no motor or sensory deficits. The July 2016 VA examination reports also reveal that there was no numbness and that the sensory exam was normal in both lower extremities for sensation to light touch. The VA examination reports reflect that muscle strength was 5/5 in the left lower extremity and 4/5 in the right lower extremity. The July 2016 VA examiner described the constant pain and intermittent pain (usually dull) as being mild in severity. Given the similarity in findings during the treatment on January 4, 2016, and the VA examination reports, the evidence is in equipoise that the bilateral radiculopathies involving the femoral and sciatic nerves underwent an increase in severity during the one-year period prior to the date of claim. In particular, the evidence is in equipoise as to whether from January 4, 2016, to June 23, 2016, the bilateral radiculopathy of the lower extremities involving the femoral nerve was manifested by moderate incomplete paralysis or neuritis in both nerves. Similarly, the evidence is in equipoise as to whether from January 4, 2016, to June 23, 2016, the bilateral radiculopathy of the lower extremities involving the sciatic nerve was manifested by moderate incomplete paralysis or neuritis in both nerves. For the same reasons as described above, the weight of evidence is against finding that from January 4, 2016, to June 23, 2016, the bilateral radiculopathy of the lower extremities involving the femoral nerve was manifested by severe incomplete paralysis or neuritis of either nerve. Likewise, the weight of evidence is against finding that from January 4, 2016, to June 23, 2016, the bilateral radiculopathy of the lower extremities involving the sciatic nerve was manifested by moderately severe incomplete paralysis or neuritis of either nerve. VA treatment records do not show any treatment or evaluation for the radiculopathy prior to January 4, 2016. In the absence of treatment or evaluation, the weight of evidence is against a finding that prior to January 3, 2016, the bilateral radiculopathy of the lower extremities involving the femoral nerve was manifested by moderate incomplete paralysis or neuritis of either nerve. Likewise, the weight of evidence is against a finding that prior to January 3, 2016, the bilateral radiculopathy of the lower extremities involving the sciatic nerve was manifested by moderate incomplete paralysis or neuritis of either nerve. Thus, increased ratings for the period prior to January 3, 2016, are not warranted, and the claims are denied. Lumbar spine disability In a December 2014 rating decision, a RO granted service connection for lumbar intervertebral disc syndrome with facet osteoarthropathy effective November 15, 2013, and assigned a 10 percent disability rating effective November 15, 2013, under Diagnostic Code 5243. On June 24, 2016, the Veteran filed his claim for an increased rating. Pursuant to Hart, the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. In the August 2020 rating decision, a RO assigned a 40 percent disability rating for the lumbar spine disability effective June 24, 2016. The July 2016 VA back examination report reveals that forward flexion was to 75 degrees and that there was no ankylosis. The August 2020 VA back examination report reveals that forward flexion was to 30 degrees and that there was no ankylosis. Therefore, a higher rating is not warranted based on ankylosis since June 24, 2016. The July 2016 examination report reflects that the Veteran had intervertebral disc syndrome with episodes of acute signs and symptoms that required bed rest for a total duration of at least one week but less than two weeks during the past 12 months. The August 2020 examination report reflects that the Veteran did not have episodes of acute signs and symptoms that required bed rest during the past 12 months. This severity would only warrant a 10 percent disability rating under Diagnostic Code 5243. Moreover, effective June 24, 2016, the lumbar spine disability and associated bilateral radiculopathy of the lower extremities are 80 percent disabling combined, which is higher than the maximum rating under Diagnostic Code 5243. Thus, a higher rating under Diagnostic Code 5243 is not warranted. The weight of evidence is against a finding that effective June 24, 2016, the lumbar spine disability was manifested by unfavorable ankylosis of the entire spine. Therefore, an increased rating is not warranted, and the claim is denied. As for the one-year period prior to the date of claim, June 24, 2016, VA treatment records reflect that the Veteran sought treatment on January 4, 2016, for back pain. Physical examination revealed a full range of motion and bilateral lumbar tenderness. The July 2016 VA examination report reveals that that forward flexion was to 75 degrees. Extension was to 20 degrees. Lateral flexion was to 20 degrees bilaterally, and lateral rotation was to 20 degrees bilaterally. The examiner noted that there was no guarding or muscle spasm. The examiner indicated that localized tenderness did not result in an abnormal gait or abnormal spinal contour. Given the findings in the July 2016 VA examination report and the January 2016 VA treatment record, the lumbar spine disability was not been productive of thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; or muscle spasm, guarding, or localized tenderness severe enough to cause an abnormal gait or abnormal spinal contour during the one-year period prior to the date of claim, June 24, 2016. As to the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), and 38 C.F.R. §§ 4.40, 4.45, and 4.59, there was pain noted on range-of-motion testing in forward flexion, extension, and lateral flexion bilaterally. The pain, however, did not result in or cause functional loss. The Veteran was able to perform repetitive-use testing with three repetitions, but there was no additional loss of function or range of motion after three repetitions. The examiner noted that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner indicated that she could not say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time and with flare-ups. The examiner noted there was insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability with repetitive use over a period of time or during flare-ups. In light of the limitations not resulting in limitation of forward flexion near or at 60 degrees or combined limitation of motion of the lumbar being near or at 120 degrees, these findings are insufficient to warrant a rating in excess of 10 percent for the lumbar spine disability prior to June 24, 2016, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. As to whether a rating in excess of 10 percent is warranted under Diagnostic Code 5243, for the one-year period prior to June 24, 2016, the July 2016 examination report reflects that the Veteran had intervertebral disc syndrome with episodes of acute signs and symptoms that required bed rest for a total duration of at least one week but less than two weeks during the past 12 months. This severity would only warrant a 10 percent disability rating under Diagnostic Code 5243 during the one-year period prior to the date of claim. Furthermore, effective January 4, 2016, to June 23, 2016, the lumbar spine disability and associated bilateral radiculopathy of the lower extremities are 60 percent disabling combined, which is the maximum rating under Diagnostic Code 5243. Thus, a higher rating under Diagnostic Code 5243 is not warranted. In addition, prior to January 4, 2016, the lumbar spine disability and associated bilateral radiculopathy of the lower extremities are 50 percent disabling combined, which is well above the 10 percent disability rating warranted based on the frequency of incapacitating episodes. The weight of evidence is against a finding that prior to June 24, 2016, the lumbar spine disability was manifested by thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; muscle spasm or guarding severe enough to cause an abnormal gait or abnormal spinal contour; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least two weeks. Accordingly, an increased rating for the period prior to June 24, 2016, is not warranted, and the claim is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.